Citation Nr: 1501411
Decision Date: 01/12/15 Archive Date: 01/20/15
DOCKET NO. 12-03 391 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to a rating greater than 10 percent prior to February 9, 2012 and greater than 20 percent from February 9, 2012 for chronic lumbar strain.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
ATTORNEY FOR THE BOARD
S. M. Marcus, Counsel
INTRODUCTION
The Veteran served in the Army National Guard from October 2001 to May 2010 with various periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA), to include active duty service from June 2002 to October 2002 and again from December 2003 to March 2005.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
The case was brought before the Board in January 2014, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include obtaining outstanding military, federal, and private records. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issue on appeal.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part.
REMAND
The Veteran was originally service-connected for his low back disability in 2005, rated 10 percent disabling. He filed a claim in 2011 indicating his service-connected low back disability had worsened. Within his claim, the Veteran noted a 2009 motor vehicle accident (MVA), which he claims aggravated his low back disability. He indicates he was treated at a private facility, the Broadway Clinic in Tulsa, Oklahoma, to include rehabilitative therapy, MRI, and other diagnostic testing. These records are referenced within VA outpatient treatment records and VA examinations, but the actual records are not currently in the claims folder.
The Board last remanded this appeal in January 2014, in part, to specifically request the Veteran to provide these records or, in the alternative, provide a release form to allow VA to obtain these records on his behalf. On remand, the Veteran was sent a letter in March 2013 requesting this information, but no information was provided. These records are particularly relevant because the Veteran's increased rating claim is primarily based on this accident causing a "worsened" low back disability. Since it is necessary to remand this claim for other reasons, the RO/AMC should make additional efforts to obtain these 2009 treatment records.
The Veteran was most recently afforded a VA examination in September 2014, merely four months ago. Unlike previous examinations, this examiner noted X-ray evidence of degenerative joint disease (DJD) of the lumbar spine. The neurological findings of this examination are ambiguous. Up to this point, the vast majority of medical evidence indicates the Veteran occasionally complained of "radiating" back pain, but no medical professional ever found objective evidence of radiculopathy or neurological deficit. Indeed, a VA outpatient treatment record dated in March 2014, a few months before the VA examination, noted "negative" straight leg testing.
On examination, however, the September 2014 VA examiner noted conflicting examination findings. On the one hand, reflex and sensory testing were noted to be within normal limits. The examiner found no objective evidence of neurological deficit. In contrast, the examiner noted straight leg testing at that time was "positive." The examiner did not address or otherwise resolve the conflicting testing results and the Veteran was never afforded a specific neurological examination in relation to his lumbar spine.
In light of the Veteran's lay description of "radiating" pain, his recent diagnosis of DJD of the lumbar spine, and the ambiguous findings on the September 2014 VA examination, new VA examinations are necessary. The Veteran should be afforded both orthopedic and neurological examinations to confirm any and all manifestations stemming from his service-connected lumbar spine disability.
The AMC must also take this opportunity to obtain recent VA outpatient treatment records from September 2014 to the present.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should ensure that the Veteran is provided with all appropriate notice as to the issue on appeal. Contact the Veteran and specifically request that he identify all VA- and non-VA medical treatment, to include following his 2009 MVA and subsequent treatment at the Broadway Clinic in Tulsa, Oklahoma (including rehabilitative therapy). Inform the Veteran that these records are not currently in his claims folder and he may provide the records himself, or sign a medical release authorizing VA to obtain the records on his behalf. If a signed medical release is obtained, the RO/AMC must make efforts to obtain these records. Regardless of his response, the RO/AMC should obtain the Veteran's VA medical treatment from the VAMC September 2014 to the present. All efforts to obtain VA records should be fully documented.
If any private records are identified, the RO/AMC must make two attempts to obtain them unless the first attempt demonstrates that further attempts would be futile. If private records are identified but not obtained, the RO/AMC should notify the Veteran of the records that were requested, the steps taken to obtain them, that the claim will be rating based on the evidence available, and that if the records are later submitted or obtained the claim may be readjudicated.
2. After the above is completed and records are obtained to the extent available, schedule the Veteran for appropriate orthopedic and neurological VA examinations to determine the current severity of his service-connected lumbar spine disability, to include resolving whether his lumbar spine disability includes neurological manifestations in light of positive straight leg testing on the September 2014 VA examination. The claims file must be made available to the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail.
A complete rationale for all opinions must be provided.
3. The RO/AMC must notify the Veteran that it is his responsibility to report for the scheduled VA examinations, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014).
4. Thereafter, readjudicate the claim. If the claim is denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response and then the case should be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).